Auerbach v. Maynard
| Decision Date | 17 March 1880 |
| Citation | 4 N.W. 816,26 Minn. 421 |
| Parties | Maurice Auerbach and others v. Mary J. Maynard, Executrix |
| Court | Minnesota Supreme Court |
Appeal by plaintiffs from an order of the district court for Kandiyohi county, Brown, J., presiding, denying their motion to revive and continue the action against the executrix of George G. Maynard, (the person originally named as defendant,) and that she be made a party defendant.
Motion to revive and continue was properly denied, and the order of denial is accordingly affirmed.
H. W Brown and Young & Newel, for appellants.
A. K Maynard, C. K. Davis, and Shaw & Levi, for respondent.
On October 28, 1878, a summons was issued in this action, and delivered (with intent that it should be actually served) to the sheriff of Kandiyohi county, where the defendant G. G. Maynard last resided. At the same time a writ of attachment was allowed, commanding said sheriff to attach said defendant's property. The sheriff seized property of the defendant under the writ, served notice upon the person in possession of the property, and still holds the same. Maynard being a non-resident of the state, and the sheriff returning that he could not find him in his county publication of the summons was ordered, and was commenced on November 7, 1878, and continued for six weeks. Maynard died November 18, 1878. In this state of facts, the plaintiffs, in April, 1879, moved the district court for an order reviving and continuing this action against said decedent's executrix. The motion was denied, upon the ground of want of authority to grant it. From this denial plaintiffs appeal.
The statutory provisions bearing on the question involved are found in Gen. St. 1878, c. 66, §§ 13, 14 64, 65 and 69. Section 13 reads that "an action is commenced as to each defendant when the summons is served on him, * * * and is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for an appeal has passed, and the judgment has been satisfied." By section 14, "An attempt to commence an action is deemed equivalent to the commencement thereof, within the meaning of this chapter, when the summons is delivered, with the intent that it shall be actually served, to the sheriff or other officer of the county in which the defendants or one of them usually or last resided; * * * but such an attempt shall be followed by the first publication of the summons, or the service thereof, within sixty days." Section 64 is that "when the defendant cannot be found within the state -- of which the return of the sheriff of the county in which the action is brought, that the defendant cannot be found in the county, is prima facie evidence --...
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